open source software influenced by positive result of patent lawsuit

About the author

Rob Tiller - Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation. He is a graduate of the University of Virginia School of Law, and a former clerk for Justice Antonin Scalia of the U.S. Supreme Court, and Judge

Total victory for open source software in a patent lawsuit

The jury verdict last Friday in favor of Red Hat and Novell in a case based on bad software patents owned by "non-practicing entities" is an important victory for the open source community. Those in the business of acquiring bad software patents to coerce payments or bring lawsuits should be worried. Two such businesses were plaintiffs in our case, and they did their best to confuse the jury in one of their favorite locales, eastern Texas. But it didn't work. The jury unanimously found that the patents were not infringed, and, even worse for the plaintiffs, that the patents were invalid.

The case was about allegations by IP Innovation, L.L.C. (a subsidiary of Acacia Technologies), along with Technology Licensing Corporation that Red Hat and Novell infringed four claims from U.S. Patents 5,072,412, 5,394,521, and 5,533,183. The patents share a common disclosure and are all titled “User interface with multiple workspaces for sharing display system objects.” The patents relate to a computer-implemented system and method for providing a graphical user interface with multiple workspaces.

Like most patent cases, this one involved technical subject matter and terminology. However, the plaintiffs came forward with minimal evidence to support their argument of infringement. They also faced abundant evidence showing that the patents were invalid based on prior art. In other words, there was nothing new in these “inventions” sufficient for a patent.

In these circumstances, you might suppose that a rational patent plaintiff would dismiss the case, perhaps in return for a token payment. Instead, the plaintiffs decided to ask the jury for millions of dollars. Their theory appeared to be that the jury might be confused by the technical terms and unsympathetic to out-of-state businesses with creative business models.

With that end apparently in view, the plaintiffs' counsel launched an attack on the theory and practice of open source software. It was clear during jury selection that our jurors had no prior knowledge of, or experience with, open source. Plaintiffs attempted to exploit this inexperience by arguing that open source software involved behavior that was, if not downright illegal, at least ethically dubious. They promoted the fallacy that open source distributors unfairly take the property of others and thereby unfairly profit. They also suggested that Red Hat's public criticisms of the U.S. patent system as it relates to software and related calls for legal reform were un-American and indicated a secret fondness for the writings of Karl Marx. I kid you not! As absurd as this argument sounds, after many hours of sitting on a hard courtroom bench, I briefly wondered whether the jury might fall for this version of the classic FUD strategy and be so fearful and confused as to find for the plaintiffs.

It turned out that there was no cause for concern. Michael Tiemann, Red Hat's vice president of open source affairs, explained the fundamentals of open source so as to make them clear, and even inspiring. He explained that open source software is about voluntary collaboration, not involuntary expropriation. He also made plain that Red Hat's legitimate criticisms of the existing patent system in no way shows a proclivity to infringe patents or indifference to patent claims, and that Red Hat respects and abides by the law.

Our side took the opposite approach from the plaintiffs, basing our case on facts and evidence, rather than emotion and confusion. Our experts carefully showed that our products were noninfringing and demonstrated specific examples of prior art. In the end, the jury saw through and quickly rejected plaintiffs' FUD. The jurors took a bit more than two hours to find every one of 23 issues in favor of Red Hat and Novell.

We learned many things from this experience, but I'll note just three here. We now know for certain that those in the business of bringing software patent lawsuits are not invincible, even in the supposedly patent-friendly jurisdiction of the Eastern District of Texas. We know that Texas juries are willing to reject bogus infringement claims and invalidate bad software patents. And we know that attacks on open source based on FUD will not stand up when subjected to the light of truth.

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About the author

Rob Tiller - Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation. He is a graduate of the University of Virginia School of Law, and a former clerk for Justice Antonin Scalia of the U.S. Supreme Court, and Judge

81 Comments

We are largely in agreement. Four years after approval is too long, but four years after public disclosure works. That said, I think any argument for software and process patents is intrinsically weak.

The sole advantage of approaching the issue by limiting term length is ease of legislative implementation. Somehow I think the ideal number -- a term length of zero -- wouldn't fly.

If there is a 4 year limit, since sw patents have such a broad claim, you in any case are NEVER sure you will not be sued by someone owns a patent you never heard about (consider that there almost 100.000 so far in US, if I recall correctly), or by someone owns a patent you misinterpretated and thought was not relevant to your work.
Since consequences of patent's infringement could be devastating, you'd better no code at all in any case.
The only reasonable solution is have only copyright (I know for sure if I copied someone else code or not), and no patents at all.
And of course copyright is abused also, they could fix by a 10 years + unlimited duration if the license is copyleft (GPL) of Creative Commons!

In my opinion as a non-lawyer, the biggest problem with the US Patent Office is that they forget the part of the US Constitution where it says the purpose of patents and copyrights is "to promote the Progress of Science and useful Arts". It is abundantly clear that software patents retard progress of Science and useful Arts and as such should never be issued. It makes sense to provide patent protection in those non-software areas where it takes a huge amount of R&D to create a new technology but very little for someone else to copy it. With software, the vast majority of the effort is in implementing functionality so copyright alone is more than adequate to protect R&D.

Copyrights have done an excellent job of promoting progress of software and got Microsoft and Apple where they are today. All patents do is create a "war tax" that everybody has to pay and imposes barriers to prevent better products from happening.

I also think of software as an expressive work like a book or music, and as such should be protected by the First Amendment under Freedom of Speech and Freedom of the Press. If the Supreme Court can consider corporate political spending to be Freedom of Speech, how can software -- especially FLOSS -- be considered otherwise?

Back to the real world -- I am delighted that Red Hat was able to win this victory. If FLOSS gets enough of these kinds of victories, the trolls and monopolists will have to go elsewhere.

We need to remember that the First Amendment is an amendment to the Constitution. Any conflicts between the initial text and an amendment means the amendment is the law.

>> If the Supreme Court can consider corporate political spending to be Freedom of Speech, how can software -- especially FLOSS -- be considered otherwise?

Not just the written software on paper but the full work as an interactive experience with the computer.

The freedoms would also argue against copyright infringement, at least if we develop independently. I think independence is a defence against copyright infringement; however, patents don't have an independent inventor defence.

Although I think there should be no patent rules for software, this will be very difficult to implement in the near future.

I very much like the idea of 4 years for a software patent. This ensures that:

a) software devs of any company or open source project can grow by basing new software on previous innovations

b) patent holding giant companies will be forced to continue to innovate because their present patent-based "monopoly" is only temporary, and they better work hard to offer their user base some new innovations by the time 4 years has expired and their patented software becomes free domain.

Ultimately, this will further drive innovation.

Also, I think in a system like this, we will start to notice that so many different companies, working with the same free-domain (ie: non-patented) software base, will still have such different product profiles as to move a step further towards public realization that patents for software are not really necessary.

Phrasing another way, it is not the patented part of the software that is its real distinguishing characteristic; moreso, it is the IMPLEMENTATION of it. Think of this: the whole free software movement has a base of code that anyone can use, and yet we have Gnome, KDE, K3b, brasero, etcetera. The projects and software products are distinguishable and unique not because any of them use any proprietary patented software, but because the developers have a different approach and different ideals.

Hence, even IF all of apple and M$'s code was free domain, they would still retain their uniqueness.

The point of what software can and cannot be patented should be reviewed and should be required to meet more highly specific criteria then has to be met by the USPO currently. Maybe too, the discussion should focus on the length of patents, in time (years), from some rational, modern perspective.
When the concept of patents were introduced in colonial America, people were still traveling by horse and buggy. As a result it took much more time to do everything from accessing materials to build their products, then market and ship same. At that time, twenty years was probably the right amount of time for the inventors to recoup their investment and make a decent profit before others were allowed to compete with them.
Today, however, the economy moves at light speed, products are created and brought to market in vastly shorter time periods. Consequently, the initial investment and decent profit is arrived at much quicker.
So much so that by the time a software patent expires these days, the software is so antiquated that the patent exists throughout much of its useful life. At which point few people would bother to compete with an alternative product.

The American founders clearly stated their goals where patents are concerned: to encourage innovation by giving the inventor a limited monopoly on their ideas so they could profit from their investment. Not to own the idea and profit from it throughout its useful life.
Software patents, under consortium's, cartels, and huge single corporations are effectively becoming a form of technical feudalism (the copyright extension act proves that corporate pressure on politicians is moving us closer to this feudalism).
Addressing more reasonable lengths for patent terms would, I think, go far in correcting this.

Well, regardless of my general thoughts on the patent system, especially with regard to software, it's fantastic to see RH stand up to these bozos instead of maybe paying a smaller bill to make them go away. And even more that the courts actually worked, and in a reasonably timely fashion.

And thanks for the post here--good to hear about the trial. I hope the transcript and/or briefs are published; I would love to read what was presented to the jury.

But what happens when the next troll steps up? It could well have a better patent and better lawyers, who know exactly how to play the game, as SCO has done, There are good (business) reasons that companies settle this kind of suit; I hope the system is fixed before RH--or any Linux company--has to pay off a troll. A long shot, I'm afraid.

Rob could you address the doctrine of LACHES as it may pertain to companies like Microsoft and MPEG LA continually FUDing about their IP being infringed but never acting on it. Instead, just using unsubstantiated threats to damage their competition by instilling Fear Uncertainty and Doubt in people who might otherwise use their competitors products. Effectively subjecting their competitors to a perpetual limbo. As such, huge amounts of resources have been expended by their competitors while the perpetual sword of Damocles hangs over their heads.

"LACHES, DOCTRINE OF (legal definition)

Based on the maxim that equity aids the vigilant and not those who procrastinate regarding

their rights; Neglect to assert a right or claim that, together with lapse of time and other

circumstances, prejudices an adverse party. Neglecting to do what should or could, have been

done to assert a claim or right for an unreasonable and unjustified time causing

disadvantage to another.

Laches is similar to 'statute of limitations' except is equitable rather than statutory and

is a common affirmative defense raised in civil actions.

Laches is derived from the French 'lecher' and is nearly synonymous with negligence.

In general, when a party has been guilty of laches in enforcing his right by great delay and

lapse of time, this circumstance will at common law prejudice and sometimes operate in bar

of a remedy which is discretionary for the court to afford. In courts of equity delay will

also generally be prejudicial.

But laches may be excused from ignorance of the party's rights; from the obscurity of the

transaction; by the pendency of a suit, and; where the party labors under a legal

disability, as insanity, infancy and the like."

By my understanding of this, a submarine patent may be upheld if the patent holder can claim ignorance (believably) of the infringement, but in Microsoft's and MPEG LA's case they've been claiming for years that their patents have been infringed by others but they never act. In fact, this appears to be a textbook case of the reason this law was established.
What am I missing? Many others may be wondering about this as well...

I am going to take a contrarian view here. My father is the patent holder on two software patents, on a subject where all of the PHOSITA's said his method could not work. Unfortunately for them, it did.
The small inventor deserves to have some protection against the predators in order to reap the benefits of his or her knowledge and ingenuity. That protection should be granted for a limited time to allow them to get a toehold in the market. You only have to look to i4i vs. Microsoft to see where that ability can be a good thing.
Where the concept breaks down is when we see NPE's use patents to extract money from Practicing Entities. The solution to this (in my opinion) is simple. If you (or a licensee) are actively producing a product based on the patent, you are safe. If there is no one producing your product, it is up to you to defend the issuance of the patent.
I should not have to prove prior art in order to invalidate a "blue sky" patent. You (as the holder of the patent) must have the responsibility to prove that the patent was solid and unemcumbered.
Additionally, if a patent ownership is transferred to another entity, it can only be done with the proviso that the patent will actually be used. An entity that produces nothing incurs no losses. An entity that has produced a product based on the claimed invention, who is then damaged by a competing product based on the same claimed invention can prove that it made some effort to capitalize on said invention. That would effectively negate the damage that NPE's cause by simply relying on "submarine patents" as their revenue stream.

How many times has the following scene been played out throughout history across neighborhoods in every city?

Some kids get together and mostly agree that something cannot be done. One or two in the group disagree of the assumed impossibility and allege they can do it. After some taunting and some wagering, eventually, maybe one of these was able to achieve the feat, maybe even after some days or weeks of practicing.

Now, imagine these kids are adults, and every so often one of the ones that achieves the feat goes out and writes up a general description of the achievement and submits it to the patent office, who them proceeds to bar anyone else in the country, for 20 years, from being able to accomplish the same feat and exploit it.

Or how about:

"Hey, I have this great puzzle, but if anyone can describe the solution in general terms, they get to control who else can solve the puzzle over the next 20 years. And it doesn't matter if you don't really know the optimum solution or even a great or good solution. Just describe some features of the solution and you can bar anyone else from coming up with a solution that also has those features."

Sounds like a pretty foolish law, doesn't it? Let's hope the SCOTUS will agree it is foolish (Bilski).

even if that argument is true, it isn't something to shrink from. after all, this is only a limited mostly voluntary communism, it is more like a union. there is a great deal of free source code that can be built on, more choice to use what best suits your purposes. open source software can even be used without supplying source code from the finished product under some restricted circumstances. you just can't make money on it without consulting the people whose code you used, for rights or licensing. seems reasonable to me.

throughout the history of man, it never was the thought of one man that made a difference, it was that man conversing with many others. something about standing on the shoulders of giants. and occasionally somewhat shorter men.

If you have never exercised the rights to secure a patent or have been named a party in an IP lawsuit ( as I have ) you have little to say if interest. If you want to play in the game - then do so. Otherwise your JAFO.

Its like men who have a "strong position" on abortion: guess what, if you don't have a vagina - you don't have an opinion worth listening to. Having a mangina doesn't count.

For US citizens only: Unlike the rights to get an abortion or any number of other imagined rights the courts have created for us. The right to secure patents and copyrights is specifically enumerated in the US Constitution.

That corporations abuse these and other rights should not prevents individuals from exercising them - even if inconvenient for the OSS community.

The above lawsuit shows the IP laws actually work - and that spurious allegations of infringement can be fought, and won, in defense of OSS. My case is another example. And while it was painful and expensive, the FSF nor ACLU nor any of these other groups were there to provide any assistance at all.

BTW, did you ever seek the support of the FSF, ACLU, or any of these "other" groups?? Did you post online with a summary of your issue and appeal to FOSS advocates for their support??

Since you don't tell anything about your issue, it is tough (impossible) for any other reader/poster here to make a judgement on your case. Maybe the FSF and others SHOULD have supported you, and then again maybe NOT.

I agree that too easily some wealthy and greedy patent supporters leverage the contributions of society yet want to stop others from similarly enjoying the fruits of their own labor and creativity and leveraging of society regardless of how much time and effort these others put into their own work and research (even before the patent was taken out).

>> If you have never exercised the rights to secure a patent or have been named a party in an IP lawsuit ( as I have ) you have little to say if interest.

I've never murdered or been murdered, but I have a lot of important opinions about murdering that I think others would care about.

Imagine if only murderers and the murdered were allowed to write the laws about murdering?

Bottom line is that I don't intend on becoming the next victim. This goes for murdering as well as for patent destruction.

If you don't want my opinion, then write me out of the law. Make me immune from murderers and from patent attacks.

As long as you can drag me into the courtroom with a good chance of getting an injunction or forcing me to pay you for what I created without any special help from you (and without a contract) or wasting much of my time and money or use the threat of that to stifle my creativity and invested time and effort, then my opinion will matter.

>> The right to secure patents and copyrights is specifically enumerated in the US Constitution.

The framers of the Constitution were not keen on monopolies of any kind. They conditioned any limited time "exclusive rights" on progress being promoted.

A 1 month monopoly for almost any "software patent" is much more likely to promote the progress than would be a 5 year monopoly, never mind a 20 year one.

How odd that the very large and talented "OSS community" gives society and other inventors a lot more wealth and material to work with than do those taking out patents, yet the OSS community doesn't even demand any sort of monopoly or royalties.

I can understand why some patent supporters would feel shamed by this reality, and with one of their principle arguments for the need for monopolies having fizzled into a great void somewhere.

"Our side took the opposite approach from the plaintiffs, basing our case on facts and evidence,... Our experts carefully showed that our products were noninfringing and demonstrated specific examples of prior art. In the end, the jury saw through and quickly rejected plaintiffs' FUD...."

This reminded me of a touching moment (if a morsel of wartime propaganda) from Michael Powell's THE LIFE AND DEATH OF COLONEL BLIMP, when General Candy announces to his batman that armistice has been achieved:

(Candy) "Murdoch, do you know what this means?"
(Murdoch) "I do, sir. Peace. We can go home. Everybody can go home. "
(Candy) "For me, Murdoch, it means more than that; it means that right is might after all. The [enemy] have shelled hospitals, bombed open towns, sunk neutral ships, used poison gas, and we won -- clean fighting, honest soldiering have won."

In the comments made here, I think the central reason for victory is being trampled underfoot. Patent trolls sought to profit through deceptive and bombastic means. They were met with fact, explanation, transparency. And we prevailed, in front of a jury that was not generally expert in the realm of software patents.

Your latter point about a non-expert jury is very valid, indeed. Its why I opted NOT to have a jury trial for my own IP trial. As I told my lawyer at the time, "I'd rather we have to convince one smart person of the truth than 12 complete idiots."

I'm curious, you said the jury also found the patents to be invalid. Did this require filing a seperate motion within the same case or was seperate action necessary?

How does this actually influence the ruling by the USPTO? Which I believe is the only place were the patent can be declared invalid.

Participating in the patent system clearly has ethical hazards, and saying one has to participate to defend oneself is akin to saying "you have to join them to beat them". Red Hat has been one of the greatest contributors to free software and insuring this can't be undone by a LBO is a valid concern. Still it's unfortunate this thread is dedicated to that subject when many other aspects could also be explored.

I suggest that the trial transcript be published and that the defendant's comments be used as a script, a template, in any future such cases. Why not just read from or use as notes, the transcript to future juries?

That was very informative and well written. Mentioned below is an excerpt of an article on Open source software:
"Open source has today become a necessity for most businesses. It is estimated that 99 percent of all companies using software use at least one open source component. The business value added by open source products makes them inevitable for every company. In addition to software, open source has today expanded its tentacles to many areas from open text books to open drug discovery and is fast spreading to other areas......to read more please visit http://www.sinapseblog.com/2010/10/open-source-business-reality.html"

Many of us see it as being about 'techie' software, written by 'beard & sandals' brigade academics and hackers, that will run your computer more reliably than M$ ever did. This of course being predicated on the dubious assumption that you could figure out how to find and install it...never mind the issues to do with ongoing development, support, training, etc Itransition Software

Open source software can be studied by anyone. This makes it possible to have more than just one entity provide support. It also adds a peer review and audit process by the public that just isn't possible with proprietary ("behind your back") software.

Like a piece of open source software? Then study it, and add it to the line-up of software you support.

Open source software development allows programmers to cooperate freely with other programmers across time and distance with a minimum of legal friction. As a result, open source software development encourages software re-use. Open Source Software is so strong now, that any new entrant will provide an royalty free open sourced format, or will allow open source implementation. custom php

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